Md. won’t detain immigrants unless probable cause

ANNAPOLIS — Gov. Martin O’Malley has directed a state-run jail in Baltimore to comply with federal requests to hold immigrants beyond their release date only if there is probable cause that a crime has been committed, a decision praised by the American Civil Liberties and Casa de Maryland on Friday.

The policy creates an additional layer on restrictions for detaining people that the Democratic governor outlined in April, when he narrowed reasons for honoring U.S. Immigration and Customs Enforcement detainers to people who were considered threats to public safety.

The updated policy — outlined in a letter dated Wednesday from the governor to the head of the Maryland Department of Public Safety and Correctional Services — comes after O’Malley received an opinion from the Maryland attorney general’s office this month about detainers. That opinion concludes “if a local law enforcement officer does not have probable cause to extend custody over the subject of an ICE detainer, the continued detention likely constitutes a violation of the Fourth Amendment.”

“Pursuant to this advice, I am hereby confirming that the Department of Public Safety and Correctional Services, in its role as administrator of Central Booking in Baltimore city, shall only comply with ICE detainer requests when the request have adequate support for a finding of probable cause under the Fourth Amendment,” O’Malley wrote.

In his letter to Gregg Hershberger, who leads the state’s public safety and corrections department, O’Malley added: “You should consult legal counsel in the Office of the Attorney General regarding the procedure by which ICE detainer requests are evaluated to determine whether they comply with the Fourth Amendment and may be honored without risk of liability.”

The advice from the attorney general comes after a request for guidance from the Washington County Sheriff’s Office, which sought advice after the ACLU sent a letter to all county detention centers and the Baltimore City Detention Center notifying them of recent federal court decisions.

Adam Snyder, an assistant attorney general, wrote in his Aug. 14 opinion that an ICE detainer likely does not provide a defense to any liability that could result from an unconstitutional detention.

“Instead, the liability of local officials will depend on whether local officials have probable cause to believe the subject has committed a crime under state or federal law,” Snyder wrote.

Sirine Shebaya, an attorney directing the ACLU of Maryland’s immigrants’ rights advocacy, said the policy is much more likely to result in constitutional rights being respected.